SYED ANWAR AFTAB, J.---Through the subject Constitutional Petition, the petitioner has sought for the following relief: "Hon'ble Court may graciously: i. Declare impugned order of respondent No.1 dated 30-9-2016 as without lawful authority in so far as application under section 345 Cr.P.C. has been rejected merely for the reason that though there was no conviction under section 7 ATA, yet because appellate court maintained the purported conviction under section 7 ATA (through oversight). ii. To set aside the impugned order as of no legal effect. iii. Respondent No.1 may be directed to decide the compromise application under section 345 Cr.P.C. on merits after verifying contents thereof".
2. Precisely stated facts arising out of the subject petition are that a case vide FIR No.51 of 2009 was registered with Police Station Bijli Road, Quetta, on the complaint of one Ali Ahmed son of Malik Sahib Khan, under sections 365-A, 302, 34, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 (ATA),' with the allegation of abduction for ransom and murder of his son, namely, Zarak Khan by the accused persons, namely, Pal'ras Habib, Wali Muhammad (present petitioner) and one Jaffar Khan. After arrest of the accused persons, they were challaned before the Court of Special Judge, Anti-Terrorism Court-I, Quetta (hereinafter referred to as "the trial Court"). During the course of trial the accused Paras Habib and Wali Muhammad (petitioner) moved separate applications dated 31st August 2009 and 4th September, 2009, respectively for declaring them as juvenile. After hearing the parties on the application filed by the accused persons, on 1st October 2009, the applications were allowed and both the accused persons were declared, as juvenile. Furthermore, on 12th October, 2009 another application was submitted before die trial Court for transfer of the case to an ordinary Court, and on 19th October 2009, order was announced and case was transferred to the Court of Sessions Judge, Quetta, thereafter, the case was proceeded by the Additional Sessions Judge-V, Quetta. On 20th February 2010, the charge under Sections 302, 365-A, 34, P.P.C. was framed and read over to the accused persons Paras Habib and Wali. Muhammad, to which they pleaded not guilty and claimed trial, subsequently, they also made a request to the Court that as they have already been declared as juvenile, therefore, to their extent the case may be proceeded separately. The request of the accused persons was acceded to and the learned Additional Sessions Judge-V, Quetta passed an order for separation of proceedings accordingly. It is also stated in the subject petition that the Additional Sessions Judge-V, Quetta by means of order dated 8th November 2010, by giving a reference of the order of the Hon'ble High Court of Balochistan Quetta (this Court) the case against accused persons Paras Habib and Wall Muhammad along with co-. accused Jaffar Khan was directed to transfer to the trial Court, whereas, after receiving the case to the extent of accused persons Paras Habib and Wali Muhammad, the trial Court by means of order dated 20th December 2012, again transferred the case to the Sessions Court, taking into consideration that the trial Court was not vested with the powers as being Juvenile Court. The order of the trial Court was assailed before this Court by means of Constitutional Petition No.193/2011, whereby, directions were made to notify the Anti- Terrorism Court a Juvenile Court, and case to the extent of accused Paras Habib and Wali Muhammad was directed to be transferred to the trial Court.
3.After transfer of the case, the trial Court has examined the prosecution witnesses, i.e. PW-1 Ali Ahmed Jan, PW-2 Mohsin Ali, ASI, PW-3 Karamatullah, PW-4 Javed Akhtar, ASI, PW-5 Syed Amir Hussain H/C, PW-6 Dr. Muhammad Noor Baloch, PW-7 Noor Khan, Judicial Magistrate, PW-8 Hafizullah S.I. (first Investigating Officer) and PW-9 Maqsood Ahmed, DSP and on close of the prosecution side, the accused persons Paras Habib and Wali Muhammad were examined under Section 342 Cr.P.C., however, they neither recorded their statements of oath under Section 340(2)
Cr.P.C., nor produced any witness in their defence.
4.The trial Court, after hearing the arguments from both sides, vide judgment dated 14th April 2012 (hereinafter referred to as "the impugned judgment") passed conviction order to the extent of accused/ petitioner Wali Muhammad, as under: "Accused Wali Aluhammad (Wall Khan): is convicted under sections 302(b). 34 P.P.C. is awarded to suffer imprisonment for life, the accused is in custody, therefore, benefit under section 382-B Cr.P.C. is extended in his favour, in addition to above under section 544-A Cr. P. C. an amount of Rs.300,000/- (Rupees Three lac) is imposed on the accused as compensation payable to the legal heirs of deceased Zarak Khan, in case of default to make payment of compensation amount above said, the accused shall further to suffer S.1 imprisonment for six months, however, under section 365-A P.P.C. accused persons are acquitted of the charge."
5. The judgment passed by the trial Court was assailed before this Court by means of filing Criminal Appeal No.83 of 2012 by accused Paras Habib, Criminal Appeal No.87 of 2012 by accused/petitioner Wali Muhammad, Criminal Appeal No.89 of 2012 by Bashir Ahmed, and Criminal Appeal No.120 of 2012 by Ali Ahmed, whereas, this Court while dealing with the same, through common judgment dated 14th April 2014, made the following observations:.
"Thus, the conviction and sentence passed under Section 302, P.P.C. read with Section 7 ATA is upheld, whereas, the appeal filed under Section 365-A PPC vide Criminal ATA Appeal No.120 of 2012 is dismissed. However, we are also of the view that the Jeep bearing registration No.JAA-003 which has been confiscated by the learned Anti-Terrorism Court-I, Quetta holding that the same is case property, is not correct and in this respect Criminal ATA Appeal No.89 of 2012, filed by Bashir Ahmed is allowed. In result, the Jeep bearing registration No.JAA-003 is ordered to be returned to his owner after its verification."
With the above, the Criminal ATA Appeals Nos.83 and 87 of 2012, having no substance, are hereby dismissed:"
6. It is further averred in the subject petition that subsequently, to the extent of petitioner Wali Muhammad, the matter was compromised for offence under Section 302/34, P.P.C. by the legal heirs of the deceased Zarak Khan and accordingly an application under Section 345 Cr.P.C. was filed before the trial Court, supported by formal compromise deed and all related document but the trial Court vide order dated 30th September 2016 thereinafter referred to as "the impugned order") declined the compromise, and in para No.8 of the order observed as under: "Perusal of record visualizes facts that applicant / convict Wali Muhammad in furtherance of common intention of his accomplice Paras Habib is stood saddled to be indulged for having kidnapped Zarak Khan for purpose of ransom and subsequently caused his death, however, police after registration of case caused arrest of both accused and SHO concerned subsequently challaned them for trial in court of Additional Sessions Judge-V, Quetta where charge punishable by provision of sections 302, 365-A, 34, P.P.C. was framed on 20th February 2010 to which indictment both accused pleaded to be entirely false who claimed trial, however, subsequently Hon'ble High Court of Balochistan, transferred case to file of this court for trial, however, no fresh charge was framed by this court on receipt of file and continued trial of case on strength of priorly framed charge by learned Additional Sessions Judge-V, Quetta, however, this court found guilty of charge both accused on conclusion of trial and accordingly convict them under provision of sections 302(b), 34, P.P. C. and sentenced them to imprisonment for life by virtue of judgment dated 12th April 2012, </u> however, both present applicant Wali Muhammad and his accomplice Paras Habib separately challenged their conviction and sentence in Hon'ble High Court of Balochistan, Quetta by filing Criminal Appeals Nos.83/2012 and 87/2012 respectively which Hon'ble High Court of Balochistan Quetta dismissed both appeals by virtue of judgment dated I4th April 2014 and accordingly upheld/maintained conviction recorded by this court under provision of sections 302(b), 34, P.P.C. read with section 7 of ATA, 1997, however, appellants separately attacked judgments dated 12th April 2012 and 14th April 2014 respectively passed by this court and Hon'ble High Court of Balochistan, Quetta in Hon'ble Supreme Court of Pakistan (Appellate Jurisdiction) by filing Criminal Appeal No.417/2014, however, his appeal met with same fate which attained finality, however, it is suffice to mention at this juncture that although charge was not framed under section 7 of ATA, 1997 by learned Additional Sessions Judge-V, Quetta and this court also convicted both accused Paras Habib and Wali Muhammad under provision of sections 302, 34 C.P.C., however, Hon'ble High Court of Balochistan not only dismissed Criminal Appeal No.83/2012 of Paras Habib and Criminal Appeal No.87/2012 of present applicant/convict Wali Muhammad by virtue of judgment dated 14th April 2014, who also maintained their conviction and sentence recorded by this court under provision of sections 302, 34, P.P.C. but additionally also added section 7 of ATA, 1997, which is still intact and operative and attained finality when Hon'ble Supreme Court of Pakistan dismissed Criminal Appeal No.417/2014 of present applicant Wali Muhammad and it is admitted feature of case that offence punishable by provision of section 7 of ATA, 1997 does not figure in first and second columns of table of section 345 Cr. P. C. and is legally not compoundable in nature and drop back of above discussion, the application under section 345 Cr.P.C. for acceptance of compromise arrived at between parties is legally incompetent which could not be obliged, however, principle relied upon by learned counsel of applicant in Ghulam Shabbir and 2 others case reported in 2003 SCMR 665 is entirely distinguishable both on factual and legal counts which could not be applied with utmost respect."
7. Heard the learned counsel for the parties and have gone through the available documents/record appended along with the subject petition. The contention of the learned counsel for the petitioner that in fact the petitioner was acquitted of the charge under Section 365- A, P.P.C., and was only convicted under Section 302/34, P.P.C., whereas, neither he was charged under Section 7-ATA, nor was convicted, but while dismissing appeal under Section 302/34, P.P.C., the learned High Court upheld the conviction under Section 302, P.P.C., however, also added "r/w Section 7-ATA", which was neither an error in law nor warranted in relation to the attending circumstances of the case, but was merely typographical/ clerical mistake, thus, to be considered in the light of the judgments, passed by the trial Court and by this Court. The perusal of the charge dated 20th February 2010, reveals that the petitioner Wali Muhammad was only charged under Sections 302, 365-A, 34 P.P.C., to which he pleaded not guilty and claimed trial whereas, the judgment dated 14th April 2012, passed by the Special Judge, Anti-Terrorism Court-I, Quetta, exercising powers of the Juvenile Court. in Special Case No.77 of 2011 also denotes that the petitioner was only convicted under Sections 302(b), 34, P.P.C., and awarded sentence to suffer imprisonment for life, in addition to pay an amount of Rs.300,000/- (rupees three lac) as compensation payable to the legal heirs of deceased Zarak Khan. However, when the judgment of the trial Court was challenged before this Court, the then worthy Division Bench, vide judgment dated 14th April, 2014, has observed that, the conviction and sentence passed under Section 302, P.P.C. read with Section 7 ATA -is upheld". Now coming to the legal proposition that whether this Court under the law, has vested with powers to interfere in the judgment, passed by it, when the judgment is signed, in which certain typographical/clerical mistakes are found? In this respect, it would be appropriate to reproduce Section 369, Cr.P.C., which says: "S.369. Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force or, in case of a High Court by the Letter Patent of such High Court no court when it has signed its judgment, shall alter or review the same, except to correct a clerical error." a. It may also be added here that while exercising powers conferred under Section 369 Cr.P.C., this Court can take the cognizance of the matter in order to correct the clerical/typographical mistake A occurred inadvertently in the impugned judgment. To further strengthen our view, we get support from the wisdom as laid down in the case of Abdul Hussain v. The State, reported in 2003 PCr.LJ 1847, wherein, it was observed as under: "The Bench also, after examining the provisions of section 369, Cr.P.C. for correction of "clerical error", concluded that the High Court has no power under the law to alter the judgment and only where some clerical errors are to be corrected that might be done."
9. Furthermore, Section 152 of the C.P.C. deals with correction of clerical and typographical mistakes occurring inadvertently in the judgment and decree or order apparent on the face of the record and B without such exception no judgment and decree or order of a Court could be reviewed/altered/modified. In the case reported in 1989 SCM R 189, the Hon'ble apex Court while dealing with Section 152 Cr.P.C. observed as under: "....S. 152... Clerical mistakes not going to merits of case and not substantially affecting rights of parties can always be corrected."
10. In another reported case, 2008 SCM R 204, the Hon'ble Supreme Court of Pakistan observed that "The expression "mistake apparent on record" means the error or mistake so manifest and clear which, if is permitted to remain on record, may have material effect on the case. But an error of fact or law, which having direct nexus with the question of determination of rights of parties affecting their substantial rights or causing prejudice to their interest, is not a mistake apparent on the record to be rectified under S.156 of Income Tax Ordinance,. 1979. The mistake must be of the nature, which is floating on the surface of record and must not involve, an elaborate discussion or detailed probe or process of determination."
11. In the light of the above provisions of law and considering the facts of the instant case, we are of the opinion that the addition of words "read with Section 7 ATA", on page No.18, first and second line of paragraph No.24 of the judgment dated 14th April 2014, passed by the learned Division Bench of this Court, is an inadvertent typographical / clerical mistake, or due to oversight, the said addition was made. However, prior to taking any decision in relation to the said mistake in light of the afore-quoted authorities, another important aspect of the case expounded during the course of arguments requires serious consideration.
12.It was also contended with vehemence by the learned petitioner's counsel that the charge in the case was framed by the Court of ordinary jurisdiction (Additional Sessions Judge-V, Quetta) and the matter was transferred to the Court of Special Judge, under Anti-Terrorism Act and powers of Juvenile Court were also allowed by the High Court to said forum, and lastly the sentence was awarded under Sections 302(b)/34 P.P.C. without the notion of any punishment under Anti- Terrorism Act, 1997. Further the Division Bench of this Court dismissed the appeal of the present petitioner and upheld conviction awarded by the trial Court under Section 302, P.P.C. read with Section 7 of ATA. The learned counsel to the petitioner opined that even this mistake was not pointed out in the appeal filed before the Hon'ble Supreme Court of Pakistan, and to substantiate his assertion had filed certified copy of Criminal Petition for Leave to Appeal No.305/2014, dated 14th May,2014, which also provides that conviction under Section 302(b), P.P.C. by the trial Court and upheld of sentence by the High Court were incorporated and there was no mention of the sentence imposed additionally by the High Court, viz. "read with Section 7 of ATA". The learned petitioner's counsel also canvassed that since the conviction "under Section 7 of ATA, 1997" was not challenged before the Hon'ble Apex forum, nor any mention was made during the course of arguments, thus, the controversial addition in the order of the High Court was not discussed in the judgment of the Hon'ble Supreme Court of Pakistan dated 18th February, 2015. It was thus the last submission of the learned petitioner's counsel that since the addition of the word "read with Section 7 ATA" simply prevails in the order of this Court and was not challenged before the Hon'ble Superior forum, as such, the said mistake (inadvertent or otherwise) has to be corrected by this Court within the precincts of law and case laws referred here-to-fore. It may also be mentioned here that both the learned Additional Advocate General as well as learned Additional Prosecutor General have differentiated the view of the learned petitioner's counsel and maintained that although the alleged mistake has not been challenged specifically before the Hon'ble apex Court, yet the judgment of this Court dated 14th April 2014, was assailed in Criminal Petition for leave to Appeal, while the judgment of the trial Court as well as of this Court were upheld by the Hon'ble Supreme Court, thus, there is no occasion with this Court to rectify, modify or correct any part of the said judgment, as the same has attained finality and can only be looked into by the Hon'ble Supreme Court, or under his directives.
13. We have also given our anxious consideration to this aspect of the case and gone through the record and related judgments minutely. It is pertinent to recollect that although this Court while deciding four connected appeals through common judgment dated 14th April 2014 has tackled each and every aspect of the case threadbare, whereafter, D maintained the conviction of present petitioner awarded vide judgment dated 14th April 2012 and lastly upheld sentence under Section 302 P.P.C. read with Section 7 of ATA. Although in the ordinary course of hearing Criminal Appeal before the High Court; there was no occasion of either enhancement of sentence or modification under punitive laws, provided, prior notice is given to the parties, even for an addition of any Section of a different enactment, as occurred in the instant case. Be that as it may, the Hon'ble Supreme Court of Pakistan while disposing of Criminal Petition for Leave to Appeal has dealt with each and every legal and factual aspect of the case minutely, and since the addition of E words "read with Section 7 of ATA" was not agitated, thus, no finding was given. Besides, as the appellate judgment of this Court was upheld by the Hon'ble Supreme Court, as such, in our humble opinion, theresubsists no occasion for this Court to interfere in an order which has already attained finality; lest to ponder to correct, alter, or rectify any intentional or unintentional error, even if floating on the. face of record. We have, therefore, reached to a definitive conclusion that this Court, at this juncture has no authority to rectify the afore-discussed inadvertent mistake, which in our respectful opinion is within the competence of the Hon'ble Superior Court of the judicature.
With these observations, the present petition, being devoid of substance is dismissed.